93 Decision Citation: BVA 93-16499
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-19 905 ) DATE
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THE ISSUE
Entitlement to an increased evaluation for shell fragment wound of the
right shoulder with injury to Muscle Group III and Muscle Group IV,
currently evaluated as 20 percent disabling.
REPRESENTATION
Appellant represented by: AMVETS
ATTORNEY FOR THE BOARD
A. D. Jackson, Associate Counse
INTRODUCTION
The veteran had active service from July 1942 until October 1945.
This matter came before the Board of Veterans' Appeals (Board) on
appeal from a rating decision of May 1992 from the Detroit, Michigan,
Regional Office (RO). The notice of disagreement was received in June
1992. The statement of the case was issued in July 1992. The
substantive appeal was received in September 1992. The appeal was
received and docketed at the Board in October 1992. The appellant is
represented by AMVETS. That organization submitted additional written
argument in November 1992.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant's primary argument is that the RO committed error in
denying an increased evaluation for the residuals of shell fragment
wound to the right shoulder which is currently rated as 20 percent
disabling. Essentially, he maintains that the current evaluation does
not reflect the true severity of his disability. He points out that
he suffers from continuous pain and that he has to take an analgesic
for relief of pain. The veteran's representative maintains that the
veteran's disability should be rated separately. He also asserts that
the compensation examination was inadequate for rating purposes.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991),
following review and consideration of all evidence and material of
record in the veteran's claims file, and for the following reasons and
bases, it is the decision of the Board that the preponderance of the
evidence is against the claim for an increased evaluation for the
residuals of shell fragment wounds to the right shoulder.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable disposition of
the veteran's appeal has been obtained by the agency of original
jurisdiction.
2. Recent examination revealed essentially full range of motion of
the right shoulder with some loss of muscle development.
3. The veteran's shell fragment wound residuals resulted in severe
injury to muscle groups III and IV.
CONCLUSION OF LAW
The schedular criteria for an evaluation of 40 percent for the
residuals of a shell fragment wound to the right shoulder have been
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7,
4.55, 4.56, 4.72, 4.14, Part 4, Diagnostic Code 5303, 5304 (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, it is necessary to determine if the appellant has submitted
a well-grounded claim and, if so, whether the Department of Veterans
Affairs (VA) has assisted the appellant in properly developing his
claim. A "well-grounded" claim is one which is not implausible. The
appellant's claim appears to be reasonably based. Our review of the
evidence further indicates that all relevant facts have been properly
developed and that there is sufficient evidence upon which to fairly
resolve the issue raised by the instant case. Therefore, a remand in
order to permit additional development of the record is unnecessary.
Disability evaluations are based upon the average impairment of
earning capacity as determined by a schedule for rating disabilities.
38 U.S.C.A. § 1155; 38 C.F.R. Part 4. In this case, the veteran is
currently assigned a 20 percent evaluation under the provision of
Diagnostic Code 5303 of the VA schedule for rating disabilities. 38
C.F.R. Part 4.
In determining the current level of impairment, the disability must be
considered in the context of the whole recorded history, including
service medical records. 38 C.F.R. §§ 4.2, 4.41. Service medical
records show that the veteran was wounded in December 1944. He
received a wound to the right shoulder which resulted in a compound
comminuted fracture of the upper third, right humerus with a
perforating shoulder wound to the anterior and posterior surface of
the right shoulder. Postoperative records show that the veteran in
June 1945 had fair strength in the arm and shoulder and essentially
full range of motion. A report of a board of medical officers in
October 1945 shows that the veteran had a deformity of the right
shoulder that was described as cicatricial which was moderate and
manifested by pain on weight lifting and pulling of the cicatrix on
extreme abduction. It was also noted that there was mild limitation
of extension of the right elbow. A rating decision of October 1945
granted service connection at a 20 percent disability.
The veteran's first VA post service compensation examination dated
December 1946 revealed a 3 1/4-inch scar on the front of the right
upper arm at the level of the axillary fold, and an X-shaped scar on
the back of the same arm at the same level measuring 3 inches by 3 3/4
inches. The veteran had complete range of motion of the right
shoulder with some limited extension of the forearm. There was slight
atrophy of the right deltoid muscle and some weakening of the arm.
Grip was equal in both hands and there was complete pronation and
supination of both forearms. Radiological study revealed a deformity
of the right shoulder with pain and limitation of motion. Plates of
the right humerus showed a healed comminuted fracture of the proximal
humeral shaft. There was minimal bony deformity. There were multiple
punctate shadows of metallic density throughout the soft tissue area.
As mentioned above, disability evaluations are based on a comparison
of clinical findings with applicable schedular criteria. Department
of Veterans Affairs examination of May 1992 revealed that the veteran
complained of episodes of stiffness. He further pointed out that he
could not lie down on his right side. Physical examination revealed a
scar anteriorly 3 inches in length and posteriorly approximately 2 1/2
inches length. There was some muscle wasting of the biceps, triceps
and supraspinatus when compared to the contralateral side. There was
about a 1/2-inch discrepancy between the left and right biceps. There
was minimal limitation of motion. There was no swelling indicated.
There was also some loss of deltoid muscle development on the right
side. The examiner noted that there appeared to be a perception of
angulation; however, he could not detect any motion restriction with
the goniometer. The abduction of the last 10 degrees of the shoulder
joint appeared to be somewhat restricted, but upon passive motion the
circumduction was equal to the contralateral side. Forward flexion
was 90 degrees, extension 90 degrees, rotation of the elbow internal
and external was 90 degrees. Abduction was 175 degrees on the right
side with the last five degrees causing some pain. Supination and
pronation were normal. The average normal range of motion for the
shoulder is forward flexion 0 to 180 degrees; the external and
internal rotation is 0 to 90 degrees and abduction is 0 to
180 degrees. See Physician's Guide for Disability Evaluation
Examinations, March 1985, Section V, Joint, page 2-7. Radiological
study revealed significant deformity of the shoulder joint involving
the proximal shaft of the humerus. There appeared to be good healing
of the fracture fragments. There were no previous films for
comparison. Scattered metallic fragments were noted over soft tissue
of the proximal arm. Bones were described as osteoporotic. There
were also significant arthritic changes at the shoulder joint.
Muscle injuries are classified into four general categories: Slight,
moderate, moderately severe, and severe. Separate evaluations are
assigned for the various degrees of disability. 38 C.F.R. 4.56. 38
C.F.R. 4.72 (1992) indicates a severe injury is established when there
is a compound, comminuted fracture with muscle injury. Here there was
such a fracture with injury to groups III and IV. This establishes a
severe injury to each group. 38 C.F.R. 4.55 (1992) indicates two or
more severe injuries about a single joint affecting the motion may be
combined, but for the shoulder girdle and arm may not exceed 50
percent per diagnostic code 5200 of 38 C.F.R. Part 4 (1992). Inasmuch
as the examiner indicated in 1992 there was little impaired motion
regarding the shoulder this section will not combine the ratings.
However, considering the initial damage and the current
manifestations, a 40 percent rating is warranted per code 5303.
We note that the veteran's representative maintains that the veteran's
disability should be rated separately for his arthritis, and
osteoporosis. However, we would point out that the evaluation of the
same disability under various diagnoses is to be avoided. Disability
from injuries to the muscles, nerves, and joints of an extremity may
overlap to a great extent, so that special rules are included in the
appropriate bodily system for their evaluation. 38 C.F.R. § 4.14
(1992). Furthermore, service connection has not been established for
these manifestations.
The Board has also considered the veteran's entitlement to a rating
pursuant to the provisions of 38 C.F.R. § 3.321. However, we do not
find that this case presents such an exception or unusual disability
picture with such related factors as marked interference with
employment or frequent periods of hospitalization as to render
impractical the application of the regular schedular standards.
ORDER
An increased evaluation for the residuals of a gunshot wound to the
right shoulder is granted as indicated, subject to regulations
concerning payment of benefits.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
JEFF MARTIN IRVIN H. PEISER, M.D.
E. W. SEERY
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a
decision of the Board of Veterans' Appeals granting less than the
complete benefit, or benefits, sought on appeal is appealable to the
United States Court of Veterans Appeals within 120 days from the date
of mailing of notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision which
you have received is your notice of the action taken on your appeal by
the Board of Veterans' Appeals.